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2014 DIGILAW 162 (GAU)

CHITRA KUMAR NATH v. STATE OF ASSAM

2014-02-10

HRISHIKESH ROY

body2014
ORDER (ORAL) Heard Mr. MK Choudhury, the learned Sr. Counsel appearing for the petitioners. Mr. M. Bhuyan, the learned counsel appears for Respondent Nos.4,5,6 & 8 who have filed the Misc. Case No.90/2014 for vacating the court’s interim order dated 08.08.2013 (Annexure-1) in WP(C) No.4424/2013. The State respondents are represented by Mr. U. Rajbongshi, the Standing Counsel, Transport Department. 2. The promotion recommended by the DPC on 30.07.2013 to the cadre of Enforcement Inspector from the rank of Asstt. Enforcement Inspector was stayed by the interim order of 08.08.2013. The interim order was passed on the writ petitioners argument that the private respondents are aged above 50 years and therefore they do not satisfy the eligibility criteria specified in Rule 11(6)(i) of the Assam Transport Service Rules, 2003 (hereinafter referred to as the “2003 Rules”). Proceeding on this basis, the court prima facie found that the private respondents are ineligible for promotion and accordingly as an interim measure, the recommendation made by the DPC on 30.07.2013 was stayed by the court. 3. For the applicants/respondents, Mr. M. Bhuyan, the learned counsel submits that under Rule 26 of the 2003 Rules in the event of hardship in a given case, the Government can relax the requirement of Rules and accordingly it is argued that since recommendation of the DPC cannot be implemented without relaxation order for the recommended respondents, the interim order should not have been passed by the court. 4. Questioning the locus standi of the writ petitioners, who do not come in the zone of consideration in the feeder cadre, the applicants contend that at the instance of juniors, the interim order should not have been passed. 5. Projecting that the recommendation of the DPC is still to be considered by the Government, Mr. Bhuyan argues that the Government should be allowed to take an independent decision on the DPC’s recommendation and the process should not be thwarted through an interim order. 6. Mr. MK Choudhury, the learned Sr. Counsel, on the other hand projects that the DPC was considering promotion of those, who do not satisfy the qualifying criteria laid-down under Rule 11(60(i) of the 2003 Rules, as the respondents are aged above 50 years on the date of consideration and accordingly the consideration of the ineligible Asstt. Enforcement Inspector is being questions by the petitioners. 7. Counsel, on the other hand projects that the DPC was considering promotion of those, who do not satisfy the qualifying criteria laid-down under Rule 11(60(i) of the 2003 Rules, as the respondents are aged above 50 years on the date of consideration and accordingly the consideration of the ineligible Asstt. Enforcement Inspector is being questions by the petitioners. 7. The writ petitioners project that the inter se seniority in the feeder cadre of Asstt. Enforcement Inspector is not yet finalized and the consideration was being made only from a draft gradation list and the senior counsel points out that writ petitions are pending where finalization of the gradation list is prayed for. 8. According to the petitioners, if the gradation list is finalized, the writ petitioners who joined service on 01.04.1995 in the cadre of Asstt. Enforcement Inspector would be placed above the respondents who were appointed initially as Enforcement Checker and were subsequently re-designated as Asstt. Enforcement Inspector on 12.04.1995. He submits that through mere re-designation of the post of Enforcement Checker, the private respondents will not be senior to the writ petitioners. 9. Mr. U. Rajbongshi, the Standing Counsel for the Transport Department, on the other hand submits that the Government is yet to invoke the relaxation power for condoning the upper age limit prescribed for promotion of Asstt. Enforcement Inspector and final decision is not yet taken by the Government. He further submits that writ petitioners too were initially recruited under a special scheme for surrendered militants as Trainee Watch and Ward Staff (Supervisor) in the year 1994 and thereafter the post was re-designated as Asstt. Enforcement Inspector on 20.12.1994. 10. Under the 2003 Rules, 25% of the vacancies in the cadre of Enforcement Inspector is to be filled up by promoting the eligible Asstt. Enforcement Inspectors, but only those Asstt. Enforcement Inspector, who are under the age of 50 years and who have rendered 10 years of service in the feeder cadre are eligible for promotion under Rule 11(6)(i) of the 2003 Rules. The respondents have certainly served for long in the department, but on the date of consideration by the DPC on 30.07.2013, they had crossed the maximum age bar of 50 years. Therefore, unless the Government relaxes the upper age cap for the respondents, they do not satisfy the eligibility criteria for promotion. 11. Whether the hardship caused to the long serving Asstt. Therefore, unless the Government relaxes the upper age cap for the respondents, they do not satisfy the eligibility criteria for promotion. 11. Whether the hardship caused to the long serving Asstt. Enforcement Inspectors is required to be ameliorated by relaxing age bar is a matter to be considered by the Government under Rule 26 of the 2003 Rules. But unless age relaxation is granted, the DPC could not have considered the ineligible Asstt. Enforcement Inspector for promotion to the higher cadre. 12. Moreover since only a draft gradation list in the feeder cadre of Asstt. Enforcement Inspector was considered and the inter se seniority is not yet finalized, the criteria for promotion being merit-cum-seniority, the seniority too will have its role on promotion, subject to determination of merit by the selection board. 13. In the above circumstances, I am of the view that the Misc. Case for recall of the interim order filed by the respondents should not be granted and accordingly the application is rejected. 14. Since this court has found fault with the DPC proceeding dated 30.07.2013, upon considering the further submission made by Mr. MK Choudhury, the learned Sr. Counsel, Mr. M. Bhuyan the learned counsel representing the private respondents and Mr. U. Rajbongshi, the Counsel for the Transport Department, and noticing the stalemate in the promotion exercise, the Government is given the liberty to start a fresh process for considering promotion of the Asstt. Enforcement Inspectors, to the extent of 25% vacancies in the cadre of Enforcement Inspector. This process should be preceded by finalizing the gradation list in the feeder cadre. 15. Here since the Government is yet to decide on relaxation of upper age limit as has been stated by the Departmental lawyer, and since the proceeding of the DPC held on 30.07.2013 is declared to be illegal, the State respondents are at liberty to consider promotion to the cadre of Enforcement Inspector in accordance with the applicable Rules. But to give finality to the aspiration of the respondents, the Government should decide on age relaxation either way, before starting the fresh process. Unless the Government considers it expedient to relax the age cap of 50 years, only those Asstt. Enforcement Inspectors who are below 50 years of age can be considered by the DPC as per Rules. 16. With the above direction, the WP(C) No.4424/2013 stands disposed of without any order on costs.